Taser use investigated in fatal shooting

Published: Wednesday, November 21, 2012 at 12:14 p.m.

Last Modified: Wednesday, November 21, 2012 at 3:25 p.m.

While prosecutors and a grand jury cleared two deputies of criminal wrongdoing last week in the shooting death of an unarmed man, the Sheriff's Office has decided to review the actions of one of the officers involved.

But it's not the deputy who fired the fatal shot.

Sheriff's officials are examining Deputy Norm Brown's use of a Taser after the grand jury report revealed that Brown repeatedly shocked the mortally wounded suspect for several minutes after the man was handcuffed face down on the ground.

The suspect, Joshua Salvato, died before help could arrive. The medical examiner determined that the gunshot from Brown's partner, Deputy Lauren Miley — not the use of the Taser — caused Salvato's death.

Sheriff Ed Dean would say little about the Taser inquiry other than to confirm it was ongoing and to note that investigators would review the incident against the department's Taser policy.

He also defended his decision to not review the shooting, even though the grand jury raised questions about why Deputy Miley didn't use some of the non-lethal options at her disposal to subdue Salvato.

Dean said the fact that Miley felt she was in mortal danger lays that question to rest.

Odd behavior

The confrontation between Salvato and the deputies occurred July 6 when dispatchers received calls about a man behaving oddly and shouting at traffic along Sunset Harbor Road in Summerfield.

According to reports, Deputy Miley was the first to confront the shirtless Salvato. She asked him if he had any weapons in his pockets. He reached in and pulled out a couple of pieces of bread. As she questioned him, he told her that he was not going to jail. He also asked her for her phone number, she said.

Miley, who later acknowledged that the man's erratic behavior made her uneasy, radioed for Deputy Brown to get to the scene quickly to help her.

Brown arrived moments later, and the camera on the dashboard of his patrol car captured the rest of the episode.

After Brown ordered him to the ground, Salvato can be seen dropping face down in the grass. Brown approached and thrust his hand into the back of the suspect's neck to force his head down. The deputy then twisted Salvato's arm behind his back to cuff him.

As both Brown and Miley reached for their cuffs, Salvato squirmed free of their grasp, and got to his knees. Brown tried to grab Salvato with one hand and threw an uppercut punch with the other. Salvato began punching back, then climbed to his feet.

He backed away from the deputies, who were still on their knees, then charged them and began swinging again. One of the punches apparently struck Brown under the right eye, knocking him backward.

Brown kicked at Salvato as he fell, but Salvato had turned his attention to Miley and swung wildly at her. He did not appear to connect solidly, although Miley later complained of a bump on the head. Medical personnel did not find any injuries on her.

After swinging at Miley, Salvato backed away again as Miley stood, drew her pistol with one hand and quickly fired a shot, striking Salvato in the abdomen.

Brown then got to his feet, drew his Taser and walked around the side of the car where Salvato was, out of sight of the camera, and began shocking him. He later told investigators that, in the commotion, he didn't realize Salvato had been shot.

The grand jury report said the Taser used by Brown delivers a five-second charge. If the trigger is held down, the device will reset and deliver another five-second shock.

Information from Brown's Taser showed he held the trigger down for three charges initially. After a 26-second delay, four more charges were delivered, followed by a 50-second gap, another charge, a five-second gap, another charge, a two-minute gap, another charge, a 39-second gap, another charge, a 34-second gap and a final charge.

In all, Brown delivered 12 five-second charges in a span of five minutes and 30 seconds.

Brown acknowledged to investigators that he continued to jolt Salvato after he was cuffed and on the ground but said it was because Salvato was trying to reach into his pockets.

Limited review

Dean said that while investigators will look at the use of the Taser in this case, they will not review the shooting itself to determine if Miley complied with the department's Use of Force Directive.

He said that is because the State Attorney's Office and the grand jury determined that Miley felt she was in fear of her life when she fired, which is the standard used to determine whether deadly force is warranted.

Chief Assistant State Attorney Ric Ridgway said his office determined only that Miley did not have criminal intent when she fired. It is up to the Sheriff's Office to determine whether its Use of Force policy was violated.

When pressed, Dean insisted there will be no review of Miley's actions.

"The determination has already been made that she was in fear of her life," he said. "That conclusion has already been made, and I have to accept that fact."

Interestingly, the department's Use of Force Policy requires that an internal investigation be done if a deputy discharges a gun and no one is injured, to determine if department policies were violated. But the rule book does not require a policy review if a deputy wounds or kills someone. In those cases, the sheriff has the option of ordering a review but is not obligated to do so.

Courts throughout the United States have held that an officer cannot be charged criminally for shooting someone as long as he believed he was in mortal danger from the suspect, even if reasonable people, upon later reflection, disagree about the degree of the threat.

Ridgway pointed to a 1984 case in Volusia County in which a police officer was indicted for manslaughter after shooting a deranged suspect who was coming at him with a knife. A circuit court judge dismissed the indictment, and an appeals court upheld the dismissal.

In doing so, the appellate judges questioned whether an officer should ever be prosecuted for shooting someone simply for exercising poor judgment.

"An officer … should not be burdened with the knowledge that if he overreacts to the real or imagined dangers he may be committing a crime," the appeals court said in its findings, "especially when those who judge his actions do so with the benefit of perfect hindsight and from a position of safety."

In this case, Ridgway said, Miley perceived that Salvato posed an extreme threat to her and her partner.

"In the simplest terms, we have to look at the deputy's state of mind, and I have to prove that (the shooting) was malicious, or intentional misconduct," Ridgway said. "Here, she gave a statement, said ‘this is my state of mind,' and there is no evidence to the contrary."

A second question

But that does not resolve whether the shooting met the department's criteria for deadly force — only that Miley did not shoot Salvato maliciously or with criminal intent.

The Use of Force policy states that deadly force may be used as a last resort, "only if the officer reasonably believes that the subject poses a significant threat of death or serious physical injury, and there is no other way to prevent escape."

It further states that the officer "shall exhaust all other reasonable means of apprehension and control before resorting to the use of firearms."

An accompanying guideline on use of force details the four levels of resistance that an officer is likely to encounter on the job and the type of force the officer is authorized to use in response.

It talks about "passive resistance," when a suspect simply refuses to comply with an officer's orders but does not threaten the officer in any way.

Next is "active resistance," when a suspect tries to evade the officer, pulls away, braces or tenses to prevent the officer from gaining control.

Then there is "aggressive resistance," when a suspect attacks in a way that may cause injury, but not grave injury or death.

Finally, there is "deadly force resistance," when a suspect attacks in a way that may cause great bodily harm or death, with or without a weapon. Only in these instances is an officer authorized to use deadly force.

While the grand jury did not recommend any action against Miley, it did question why she "chose to discharge her firearm so quickly." It added that "she was equipped with and properly trained in the use of a Taser. She also had pepper spray."

The grand jury allowed, however, that Miley had only "one or two seconds to decide how she should respond" to Salvato, that she was giving away about five inches to the suspect, and that her partner had been knocked down.

The grand jury also questioned Brown's use of the Taser.

After he was shot, Salvato remained on his feet, and Brown used his Taser "to force him to the ground and then force Mr. Salvato to roll over and put his hands behind his back."

The jurors noted while they consider this to be a reasonable use of the Taser, they questioned why Brown continued to jolt Salvato after he was cuffed.

Of Brown's statement that Salvato was attempting to reach into his pockets, they wondered why Brown didn't just frisk the prone, cuffed suspect for weapons.

"Given that he was on the ground with his hands cuffed behind him, this should have been a relatively simple matter and would have made further discharges of the Taser unnecessary."

The grand jury attributed both deputy's mistakes to their relative inexperience and lack of training. The only recommendation the panel made was that the Sheriff's Office increase its training from 25 hours a year to 40 hours a year. Sheriff Dean has agreed to do so.

Part of that training will be what's known as "Red Man," which allows deputies to learn hand-to-hand combat in simulated confrontations against a training officer in a padded suit.

Case not closed

Meantime, the Sheriff's Office is facing a federal lawsuit from the suspect's family.

In a complaint filed last week, lawyers representing the Salvato family claim there was no reason to take Salvato into custody and that the deputies' actions were excessive.

They believe Salvato was in fear, because he had committed no crime, and therefore he resisted.

"Neither Miley nor defendant Brown made any attempt to provide any medical aid to Josh. There was no attempt by either officer to stop the bleeding or to make Josh more comfortable. Instead, Josh bled to death while lying face down and handcuffed in the middle of Sunset Harbor Road," the complaint states.

The law firms whose names are on the complaint, Varnell & Warwick PA, Leopold Law PA and Romanucci & Blandin LLC, noted they're seeking in excess of $75,000, "exclusive of interest, attorney's fees and costs."

Salvato's father told investigators that the last time he saw his son was just before dark when he decided to walk to his grandmother's residence on Sunset Harbor Road. The man said his son had recently lost his job and was not actively seeking employment, which caused them to argue.

He said his son was acting depressed.

Those who called 911 told Florida Department of Law Enforcement investigators that a man had jumped into their lanes, and one said the man threw what was described as a piece of stick at the windshield.

<p>While prosecutors and a grand jury cleared two deputies of criminal wrongdoing last week in the shooting death of an unarmed man, the Sheriff's Office has decided to review the actions of one of the officers involved.</p><p>But it's not the deputy who fired the fatal shot.</p><p>Sheriff's officials are examining Deputy Norm Brown's use of a Taser after the grand jury report revealed that Brown repeatedly shocked the mortally wounded suspect for several minutes after the man was handcuffed face down on the ground.</p><p>The suspect, Joshua Salvato, died before help could arrive. The medical examiner determined that the gunshot from Brown's partner, Deputy Lauren Miley — not the use of the Taser — caused Salvato's death.</p><p>Sheriff Ed Dean would say little about the Taser inquiry other than to confirm it was ongoing and to note that investigators would review the incident against the department's Taser policy.</p><p>He also defended his decision to not review the shooting, even though the grand jury raised questions about why Deputy Miley didn't use some of the non-lethal options at her disposal to subdue Salvato.</p><p>Dean said the fact that Miley felt she was in mortal danger lays that question to rest.</p><h3>Odd behavior</h3>
<p>The confrontation between Salvato and the deputies occurred July 6 when dispatchers received calls about a man behaving oddly and shouting at traffic along Sunset Harbor Road in Summerfield.</p><p>According to reports, Deputy Miley was the first to confront the shirtless Salvato. She asked him if he had any weapons in his pockets. He reached in and pulled out a couple of pieces of bread. As she questioned him, he told her that he was not going to jail. He also asked her for her phone number, she said.</p><p>Miley, who later acknowledged that the man's erratic behavior made her uneasy, radioed for Deputy Brown to get to the scene quickly to help her.</p><p>Brown arrived moments later, and the camera on the dashboard of his patrol car captured the rest of the episode.</p><p>After Brown ordered him to the ground, Salvato can be seen dropping face down in the grass. Brown approached and thrust his hand into the back of the suspect's neck to force his head down. The deputy then twisted Salvato's arm behind his back to cuff him.</p><p>As both Brown and Miley reached for their cuffs, Salvato squirmed free of their grasp, and got to his knees. Brown tried to grab Salvato with one hand and threw an uppercut punch with the other. Salvato began punching back, then climbed to his feet.</p><p>He backed away from the deputies, who were still on their knees, then charged them and began swinging again. One of the punches apparently struck Brown under the right eye, knocking him backward.</p><p>Brown kicked at Salvato as he fell, but Salvato had turned his attention to Miley and swung wildly at her. He did not appear to connect solidly, although Miley later complained of a bump on the head. Medical personnel did not find any injuries on her.</p><p>After swinging at Miley, Salvato backed away again as Miley stood, drew her pistol with one hand and quickly fired a shot, striking Salvato in the abdomen.</p><p>Brown then got to his feet, drew his Taser and walked around the side of the car where Salvato was, out of sight of the camera, and began shocking him. He later told investigators that, in the commotion, he didn't realize Salvato had been shot.</p><p>The grand jury report said the Taser used by Brown delivers a five-second charge. If the trigger is held down, the device will reset and deliver another five-second shock.</p><p>Information from Brown's Taser showed he held the trigger down for three charges initially. After a 26-second delay, four more charges were delivered, followed by a 50-second gap, another charge, a five-second gap, another charge, a two-minute gap, another charge, a 39-second gap, another charge, a 34-second gap and a final charge.</p><p>In all, Brown delivered 12 five-second charges in a span of five minutes and 30 seconds.</p><p>Brown acknowledged to investigators that he continued to jolt Salvato after he was cuffed and on the ground but said it was because Salvato was trying to reach into his pockets.</p><h3>Limited review</h3>
<p>Dean said that while investigators will look at the use of the Taser in this case, they will not review the shooting itself to determine if Miley complied with the department's Use of Force Directive.</p><p>He said that is because the State Attorney's Office and the grand jury determined that Miley felt she was in fear of her life when she fired, which is the standard used to determine whether deadly force is warranted.</p><p>Chief Assistant State Attorney Ric Ridgway said his office determined only that Miley did not have criminal intent when she fired. It is up to the Sheriff's Office to determine whether its Use of Force policy was violated.</p><p>When pressed, Dean insisted there will be no review of Miley's actions.</p><p>"The determination has already been made that she was in fear of her life," he said. "That conclusion has already been made, and I have to accept that fact."</p><p>Interestingly, the department's Use of Force Policy requires that an internal investigation be done if a deputy discharges a gun and no one is injured, to determine if department policies were violated. But the rule book does not require a policy review if a deputy wounds or kills someone. In those cases, the sheriff has the option of ordering a review but is not obligated to do so.</p><p>Courts throughout the United States have held that an officer cannot be charged criminally for shooting someone as long as he believed he was in mortal danger from the suspect, even if reasonable people, upon later reflection, disagree about the degree of the threat.</p><p>Ridgway pointed to a 1984 case in Volusia County in which a police officer was indicted for manslaughter after shooting a deranged suspect who was coming at him with a knife. A circuit court judge dismissed the indictment, and an appeals court upheld the dismissal.</p><p>In doing so, the appellate judges questioned whether an officer should ever be prosecuted for shooting someone simply for exercising poor judgment.</p><p>"An officer … should not be burdened with the knowledge that if he overreacts to the real or imagined dangers he may be committing a crime," the appeals court said in its findings, "especially when those who judge his actions do so with the benefit of perfect hindsight and from a position of safety."</p><p>In this case, Ridgway said, Miley perceived that Salvato posed an extreme threat to her and her partner.</p><p>"In the simplest terms, we have to look at the deputy's state of mind, and I have to prove that (the shooting) was malicious, or intentional misconduct," Ridgway said. "Here, she gave a statement, said 'this is my state of mind,' and there is no evidence to the contrary."</p><h3>A second question</h3>
<p>But that does not resolve whether the shooting met the department's criteria for deadly force — only that Miley did not shoot Salvato maliciously or with criminal intent.</p><p>The Use of Force policy states that deadly force may be used as a last resort, "only if the officer reasonably believes that the subject poses a significant threat of death or serious physical injury, and there is no other way to prevent escape."</p><p>It further states that the officer "shall exhaust all other reasonable means of apprehension and control before resorting to the use of firearms."</p><p>An accompanying guideline on use of force details the four levels of resistance that an officer is likely to encounter on the job and the type of force the officer is authorized to use in response.</p><p>It talks about "passive resistance," when a suspect simply refuses to comply with an officer's orders but does not threaten the officer in any way.</p><p>Next is "active resistance," when a suspect tries to evade the officer, pulls away, braces or tenses to prevent the officer from gaining control.</p><p>Then there is "aggressive resistance," when a suspect attacks in a way that may cause injury, but not grave injury or death.</p><p>Finally, there is "deadly force resistance," when a suspect attacks in a way that may cause great bodily harm or death, with or without a weapon. Only in these instances is an officer authorized to use deadly force.</p><p>While the grand jury did not recommend any action against Miley, it did question why she "chose to discharge her firearm so quickly." It added that "she was equipped with and properly trained in the use of a Taser. She also had pepper spray."</p><p>The grand jury allowed, however, that Miley had only "one or two seconds to decide how she should respond" to Salvato, that she was giving away about five inches to the suspect, and that her partner had been knocked down.</p><p>The grand jury also questioned Brown's use of the Taser.</p><p>After he was shot, Salvato remained on his feet, and Brown used his Taser "to force him to the ground and then force Mr. Salvato to roll over and put his hands behind his back."</p><p>The jurors noted while they consider this to be a reasonable use of the Taser, they questioned why Brown continued to jolt Salvato after he was cuffed.</p><p>Of Brown's statement that Salvato was attempting to reach into his pockets, they wondered why Brown didn't just frisk the prone, cuffed suspect for weapons.</p><p>"Given that he was on the ground with his hands cuffed behind him, this should have been a relatively simple matter and would have made further discharges of the Taser unnecessary."</p><p>The grand jury attributed both deputy's mistakes to their relative inexperience and lack of training. The only recommendation the panel made was that the Sheriff's Office increase its training from 25 hours a year to 40 hours a year. Sheriff Dean has agreed to do so.</p><p>Part of that training will be what's known as "Red Man," which allows deputies to learn hand-to-hand combat in simulated confrontations against a training officer in a padded suit.</p><h3>Case not closed</h3>
<p>Meantime, the Sheriff's Office is facing a federal lawsuit from the suspect's family.</p><p>In a complaint filed last week, lawyers representing the Salvato family claim there was no reason to take Salvato into custody and that the deputies' actions were excessive.</p><p>They believe Salvato was in fear, because he had committed no crime, and therefore he resisted.</p><p>"Neither Miley nor defendant Brown made any attempt to provide any medical aid to Josh. There was no attempt by either officer to stop the bleeding or to make Josh more comfortable. Instead, Josh bled to death while lying face down and handcuffed in the middle of Sunset Harbor Road," the complaint states.</p><p>The law firms whose names are on the complaint, Varnell & Warwick PA, Leopold Law PA and Romanucci & Blandin LLC, noted they're seeking in excess of $75,000, "exclusive of interest, attorney's fees and costs."</p><p>Salvato's father told investigators that the last time he saw his son was just before dark when he decided to walk to his grandmother's residence on Sunset Harbor Road. The man said his son had recently lost his job and was not actively seeking employment, which caused them to argue.</p><p>He said his son was acting depressed.</p><p>Those who called 911 told Florida Department of Law Enforcement investigators that a man had jumped into their lanes, and one said the man threw what was described as a piece of stick at the windshield.</p>